By Niki Mendoza

Law360 (April 22, 2020, 4:27 PM EDT )

Niki Mendoza

Many courts across the country are essentially closed to class action litigants during this pandemic. The court closures result in a stalemate of critical disputed motions and perpetual uncertainty, but continued legal bills for the parties and carriers.

Some courts are commenting on the magnitude of the health crisis and its impact on litigation, and encouraging litigants, particularly in complex litigation, to turn to alternative dispute resolution as a valuable resource.[1] Other courts, however, are all or partially dark, removing any chance of an impetus from the court to get settlement talks going. This circumstance may present a window for class action litigants to raise mediation as an option where they otherwise would be concerned about the signal it was sending to the other side. 

Indeed, ADR, such as mediation or arbitration, can provide timely answers to important questions such as: (1) can this case be settled now; (2) if not now, then when; (3) on what terms; (4) what is motivating the other side; (5) how has the pandemic changed the litigation landscape or the financial landscape for one or more parties; and (6) how might a judge rule on certain disputed issues, including class certification.

While stay-at-home orders remain in place, virtual mediations are working as an effective substitute for in-person class action mediations.

The questions for those who fear the unfamiliar circle around how virtual mediations work logistically: Is everyone — plaintiffs, defendants, carriers, mediator — in one big joint video conference? Is it possible to have breakout sessions with one or more constituencies and with or without the mediator? How are privacy, confidentiality and security accomplished? 

Some reluctance to embark on virtual mediations, particularly in complex matters like class actions, are lessened once the parties experience even one virtual mediation and they learn more about the actual process and what to expect. 

Planning a virtual class action mediation starts with selecting a videoconference platform. Zoom appears to be the most prevalent platform currently being used, and the company has recently issued statements addressing security enhancement and data transit options. Other workable platforms include, for example, Webex and Microsoft Teams. 

Whichever platform is used, the mediation should be set up with password-protected features provided only to the appropriate constituencies, with encryption, and with the recording function disabled. A tech-savvy mediator will adapt to whichever platform the parties prefer to create a very similar experience to the back-and-forth of a traditional in-person mediation.

The day of the mediation, the mediator can start with a joint session of all parties, all in one virtual room, to make introductions, and discuss the ground rules and tentative agenda for the day. One benefit of being virtual is that some videoconference platforms readily identity each of the participants, and in some, even the particular speaker.   

Once the opening joint opening session is completed, the mediator can break off and join separate private caucus sessions. Only the participants in each private caucus session should be provided with the separate password for the protected virtual room to prevent the bombing-in that has been highlighted in some media outlets as occurring in environments that are not password-protected, such as schools or other public venues. 

The separate caucus sessions continue to be as effective as the parties and the mediator make them; the virtual aspect does not materially impact the depth of the mediator's reality checks and questions, nor the candor of the parties' responses. For those mediations run by a mediator who is more evaluative, i.e., who gets into the weeds of the facts and law, as opposed to shuttling numbers, there is the same detailed work-up and tough questions formulated in advance, and the same thorough follow-up if necessary. 

By way of example, in many multiyear putative class actions, it is not uncommon to have a motion for class certification pending for many months or longer. In some instances, and particularly now with the courts providing neither certainty nor reprieve from legal expenses, it may make sense for the parties to participate in mediation during that window. A mediator experienced in class action litigation and mediation can help the parties navigate the legal, factual and ethical issues associated with the pending class certification motion and associated settlement negotiations.

Once the separate caucus session with the mediator concludes, the parties remaining in the virtual room can actually see when the mediator exits the room, leaving the parties to discuss the mediator's comments privately, as in in-person mediations. To ensure the process runs smoothly, the mediator may designate a contact representative for each constituency who is notified in advance, for example five minutes in advance, before the mediator will join the next separate caucus session room.

As one separate caucus session is progressing, such as with the plaintiff constituency, other constituencies can engage in either separate or joint sessions in other private virtual rooms, even without the mediator facilitating. In some large class actions it may be useful for the carriers and defense to have various separate sessions.  

Having joint sessions on certain targeted topics are also common, such as on injunctive relief terms, and in particular during this time, on issues of limitations on ability to pay. An added benefit of everyone being virtual with computers, tablets or smart phones in front of them is that actual data or other evidence can be easily shared on the screen and discussed with all participants simultaneously.

Class action practitioners should select a mediator who is experienced in setting up and seamlessly running the various virtual platforms, ensuring that the day operates the most efficiently and effectively, and allowing for ease of transition from one virtual room to another, with no lag time or logistical glitches. 

All participants should ensure they will be on a strong and secure internet connection (i.e., not connecting via a public Wi-Fi system at a cafe), and have a backup plan such as contact through mobile phones in the event the primary communication medium fails due to weather conditions or loss of power, etc. Mediators experienced in virtual mediations encourage a dry run in advance to get everyone familiar and comfortable with the technology on "game day."

Although some people worry about other family members or pets (or laundry) causing a distraction, mediations run smoothly if each participant and the mediator reserve a quiet location in the house. Interruptions are rare, and sometimes even humanizing. An extra bonus of being on video is that participants can easily mute or even stop video if necessary while the session continues. 

Advance planning and preparation by both the parties and the mediator is key. Many class action litigators, their clients and insurers are veterans of the mediation process, and understand that the most effective mediations are those where all parties and the mediator come well prepared and with a firm commitment to the process, before, during and after the mediation. That remains true, whether in person or by video.

As states are reviewing data and science in deciding when to reopen various portions of their commerce and public services during this life-or-death crisis, mediations continue. Although virtual mediations are unlikely to ever wholly replace effective in-person mediations, at least for the most complex class actions, virtual mediations are serving as a timely and valuable tool during this window of uncertainty.

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Niki Mendoza is a mediator and class action settlement strategist at Phillips ADR.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] See, e.g., In re: All Asbestos Litigation, Master File — Re:  Asbestos Litigation, Amended — Supplemental Case Management Order Regarding Covid -19 Emergency Measures (Circuit Court Third Judicial Circuit, Madison County, Ill. Mar. 18, 2020) ("As time is of the essence in these types of cases, parties are encouraged to work remotely towards a resolution via email, video or telephonic means."); and In re: Disposable Contact Lens Antitrust Litigation, Case No. 3:15-md-2626-J-20JRK (M.D. Fla. Apr. 3, 2020), ECF No. 1180, at 5 ("because of this life and death crisis, the Court sincerely urges the Parties to earnestly confer with each other in a deliberate attempt to reach an agreement that completely resolves this litigation.").

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